Parents
and advocates have expressed concern about the
new attorney fee statute in IDEA 2004 permitting school
districts to recover fees from parents.

IDEA
2004 states:

(i)
IN GENERAL - In any action or proceeding brought under this section,
the court, in its discretion, may award reasonable attorneys'
fees as part of the costs--

(I) to a prevailing party who is the parent of a child with a
disability;

(II)
to a prevailing party who is a State educational agency or local
educational agency against the attorney of a parent who files
a complaint or subsequent cause of action that is frivolous, unreasonable,
or without foundation, or against the attorney of a parent
who continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation [bold added
for emphasis by me]; or

(III)
to a prevailing State educational agency or local educational
agency against the attorney of a parent, or against the parent,
if the parent's complaint or subsequent cause of action was presented
for any improper purpose, such as to harass, to cause unnecessary
delay, or to needlessly increase the cost of litigation. 20
U.S.C. Section 1415(i)(3)(B)(i)

Any attorney or pro se party in a U. S. District Court
lawsuit is bound by the Federal Rules of Civil Procedure (FRCP).
Rule 11 states that the filing of a pleading or document is an
automatic representation and certification that:

(1)
it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the
cost of litigation;

(2)
the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment
of new law;

(3)
the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and

(4)
the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack
of information or belief.

The
language in IDEA 2004 that permits fees against an attorney states:

who
files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or . . . continued to litigate
after the litigation clearly became frivolous, unreasonable, or
without foundation ...

is very similar to the standard of Rule Eleven which prohibits
litigation for:

any
improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation . . .

Improper
Litigation
The fact that IDEA 2004 includes Rule 11 language does not give
school board attorneys a pass on frivolous actions. They are still
accountable under Rule 11.

In
my practice, I cannot recall a single case where a school board
initiated a due process hearing as the moving party for reasons
that would fall under Rule 11.

Unfortunately, I have had far too many consultations with parents
in pro se litigation who went forward with cases that should
not have been brought and risked having to pay the school board's
attorney fees. In most cases, they consulted with me after
they lost the due process hearing and wanted me to pick up the
appeal.

Practical
Impact of This StatuteThe
practical impact of this statute may be to reduce the number of
parents who shoot from the hip, request a due process hearing
out of anger and emotion, do not prepare their case, and simply
want to get back at the school district for perceived wrongs.

Parents, advocates, and parent attorneys will benefit if it has
this effect.

Many federal judges and hearing officers view parents of children
with disabilities as "loose cannons." This perception
poisons the well for other parents. As attorneys, we must overcome
this perception of our client and convince the hearing officer
or judge that our parent and the facts in this case are different.